Town of Webster v. Alcoholic Beverages Control Com'n

• Decision Date: 30 October 1936
• Citation: 295 Mass. 572,4 N.E.2d 302
• Parties: TOWN OF WEBSTER v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 572

4 N.E.2d 302

TOWN OF WEBSTER v. ALCOHOLIC BEVERAGES CONTROL COMMISSION.

Supreme Judicial Court of Massachusetts, Worcester.

October 30, 1936

Petition by the Town of Webster against the Alcoholic Beverage Control Commission for a writ of certiorari. A demurrer to the petition was sustained and the petition was dismissed, and petitioner brings exceptions saved in the petition.

Exceptions overruled.

Appeal from Supreme Judicial Court, Worcester County.

T Leboeuf, of Webster, for petitioner.

R Clapp, Asst. Atty. Gen., for respondent.

FIELD Justice.

This is a petition for a writ of certiorari. It was brought by the town of Webster against the alcoholic beverages control commission. G.L.(Ter.Ed) c. 6, § 43, as amended. See St.1933 c. 120, § 2, and St.1933, Ex.Sess., c. 375, § 1. The petitioner seeks to have certified the proceedings of the respondents whereby on February 3, 1936, the granted to one John G. Parker a restaurant liquor license to the end that such proceedings may be quashed. The respondents demurred to the petition on the ground that it set forth no matter or cause entitling the petitioner to relief, and also filed a return of the record of their proceedings relating to the subject matter of the petition. The case was heard by a single justice of this court upon the pleadings and such record. No evidence was introduced by either party. The single justice sustained the demurrer and ordered the petition dismissed, and the petitioner, excepted.

There was no error.

We assume in favor of the petitioner that it is a proper party to bring this petition for a writ of certiorari. It is the established practice for the court to hear the whole case on the petition. Warren v. Street Commissioners, 183 Mass. 119, 66 N.E. 412. And it has been said that it is a permissible practice to file a demurrer to the petition with a return of the record of the proceedings. Selectmen of Wakefield v. Judge of First District Court, 262 Mass. 477, 481, 160 N.E. 427. See, also, Worcester & Nashua Railroad Co. v. Railroad Commissioners, 118 Mass. 561, 564. Since on the allegations of the petition the decision in any event must be adverse to the petitioner we do not further discuss procedural questions but assume in favor of the petitioner that the case made by the allegations of the petition is before this court for consideration. See Sampson v. Treasurer and Receiver General, 282 Mass. 119, 121, 184 N.E. 465. Compare Inhabitants of Mendon v. County Commissioners, 5 Allen, 13, 15; Marcus v. Board of Street Commissioners, 252 Mass. 331, 335, 147 N.E. 866; Newcomb v. Board of Aldermen of Holyoke, 271 Mass. 565, 567, 171 N.E. 826.

The case made by the allegations of the petition-a case consistent with the return of the record of the proceedings of the commission but not supported thereby in all particulars-is as follows: The population of Webster is such-thirteen thousand, eight hundred thirty-seven-that an aggregate of fourteen licenses of the classes here in question for the sale of alcoholic beverages therein may be granted of which three may be licenses for the sale of beverages not to be drunk on the premises, that is, so called package store licenses. The local licensing authorities granted and the commission approved thirteen licenses of which two were package store licenses. Thereafter one William F. Martel applied for a package store license and such license was granted by the local licensing authorities. One John G. Parker applied for a so called restaurant liquor license but the local licensing authorities refused to grant it, and he appealed to the commission. After hearing by the commission on the appeal of Parker the commission refused to approve the license granted to Martel and ordered the local licensing authorities to grant a restaurant liquor license to Parker. The local licensing authorities refused to grant the license and thereafter the commission granted such a license to Parker. The petitioner contends that the action of the commission in granting the restaurant liquor license to Parker was unlawful on the sole ground that by such action the town of Webster, through its licensing authorities, was deprived of the privilege of granting three package store licenses.

Authority is conferred upon the commission by the governing statutes in proper cases to take the actions alleged in the petition to have been taken by them. G.L.(Ter.Ed.) c. 138, § 15, as amended (see St.1933, Ex.Sess. c. 376, § 15 and St.1935, c. 440, § 12), after authorizing local licensing authorities to grant licenses for the sale of alcoholic beverages not to be drunk on the premises, provides, with an exception not here material, that ‘ No such license shall be granted except to an applicant approved by the commission.’ G.L. (Ter.Ed.) c. 138, § 12, as amended (see St.1933, Ex.Sess. c. 376, § 12 and St.1935, c. 468, § 1), authorizes local licensing authorities ‘ subject to the prior approval of the commission’ to grant licenses for the sale of alcoholic beverages by common victualler's licensed to conduct restaurants, and certain other licenses. G.L. (Ter.Ed.) c. 138, § 67, as amended (see St.1933, Ex.Sess., c. 376, § 67 and St.1935, c. 440, § 42), provides that ‘ Any applicant...